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Mays v. Shoemaker Property Management, LLC

Court of Appeals of Mississippi

April 24, 2018

TAKIA MAYS, INDIVIDUALLY, AND AS PERSONAL REPRESENTATIVE OF THE ESTATE AND HEIRS-AT-LAW AND/OR WRONGFUL DEATH BENEFICIARIES OF ROSALYN PACKER, DECEASED APPELLANT
v.
SHOEMAKER PROPERTY MANAGEMENT, LLC AND CAROLINE DEVELOPMENT, LLC APPELLEES

          DATE OF JUDGMENT: 11/03/2016

          FORREST COUNTY CIRCUIT COURT HON. ROBERT B. HELFRICH TRIAL JUDGE

          ATTORNEY FOR APPELLANT: CARLOS EUGENE MOORE

          ATTORNEYS FOR APPELLEES: PATRICK H. ZACHARY JACK W. LAND

          BEFORE IRVING, P.J., FAIR AND WESTBROOKS, JJ.

          WESTBROOKS, J.

         ¶1. Takia Mays, the daughter and beneficiary of Rosalyn Packer, sued Shoemaker Property Management LLC and Caroline Development LLC after Packer died in a fire at an apartment managed by Shoemaker and owned by Caroline. Shoemaker and Caroline successfully moved for summary judgment because Mays had not designated an expert witness to support her negligence theory or her claim for breach of the implied warranty of habitability. Mays appeals. Finding no error, we affirm.

         FACTS

         ¶2. In 2012, Alfreda Miles was residing in an apartment at 200 Tuscan Avenue in Hattiesburg, Mississippi. Miles's sister, Packer, had been having difficulties with Mays, so Miles allowed Packer to stay with her through the holidays. On November 15, 2012, a fire broke out in the apartment. Packer was the only one there at the time and unfortunately she died as a result.

         ¶3. Both the City of Hattiesburg and the State of Mississippi investigated the fire and reported that "[p]otential heat/ignition sources identified within the area of origin included the stove and or some type of human involvement." Moreover, they both reported that the "electrical outlets and . . . devices were eliminated as possible ignition sources." Ultimately, both ruled it an accidental fire and closed the file.

         ¶4. In January 2012, Miles had reported that her stove would not turn off. On January 20, 2012, Shoemaker replaced it. According to the record, there were no new work reports filed regarding the new stove. In her deposition, Miles testified that she told George Moore, an electrician, that she had been having issues with her lights and smoke detector because a circuit breaker was not working properly. In May 2012, Moore checked and replaced the breaker that serviced Miles's air conditioning unit. In his deposition, Moore testified that the breaker was old and needed to be replaced. But Moore did not pull out all of the breakers from the box to inspect the electrical system as a whole, because he had only been called to repair the air conditioner. In October 2012, Miles's heat, tub, and kitchen sink were repaired. No other work orders were placed nor repairs completed between October 2012 and the fire in November 2012.

         ¶5. Mays sued individually, as the personal representative of Packer's estate, and on behalf of Packer's wrongful-death beneficiaries. Mays raised claims of premises liability and breach of the implied warranty of habitability. In March 2014, Mays filed a complaint and an amended complaint. In September 2014, Mays filed a second amended complaint.

         ¶6. In January 2015, the original scheduling order set deadlines for discovery to be completed by July 31, 2015. Mays had to designate her experts by May 29, 2015. Shoemaker and Caroline had until June 29, 2015, to designate their experts. In July 2015, the scheduling order was amended to extend discovery to August 31, 2015.

         ¶7. On October 5, 2015, the circuit court granted Shoemaker and Caroline's motion for partial summary judgment regarding Mays's premises liability claim, leaving implied warranty of habitability as Mays's only remaining claim. On October 13, 2015, the circuit court excluded J. Albert McEachern Jr. as an expert witness for Mays. McEachern was set to testify as to the causation of the fire. On April 12, 2016, the circuit court granted Shoemaker and Caroline's motion to exclude James Butts's expert testimony, but denied their motion to exclude James Vickers as an expert. Butts was also set to testify as to the causation of ...


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